Daria Rene Reed, n/k/a Daria Rene Radec, petitioner, Respondent, vs. Joel David Reed, Appellant.

Daria Rene Reed, n/k/a Daria Rene Radec, petitioner, Respondent, vs. Joel David Reed, Appellant. A05-286, Court of Appeals Unpublished, November 22, 2005.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A05-286

 

 

Daria Rene Reed,

n/k/a Daria Rene Radec,

petitioner,

Respondent,

 

vs.

 

Joel David Reed,

Appellant.

 

 

Filed November 22, 2005

Affirmed
Crippen, Judge*

 

Scott County District Court

File No. 2000-3763

 

 

A. Rhett Taber, Esq., Olive, Taber & Owens, P.A., 5270 West 84th Street, Suite 300, Bloomington, MN 55437 (for respondent)

 

John T. Burns, Jr., Burns Law Office, 115 Midway Bank Building, 14300 Nicollet Court, Burnsville, MN 55306 (for appellant)

 

            Considered and decided by Dietzen, Presiding Judge, Klaphake, Judge, and Crippen, Judge.

U N P U B L I S H E D   O P I N I O N

CRIPPEN, Judge

            Appellant Joel Reed moved to reduce or terminate his maintenance obligation to respondent Daria Reed, and the district court denied the motion.  Because appellant has not shown that the court made clearly erroneous findings of fact or otherwise abused its discretion, we affirm.

FACTS

            Appellant's challenge to his maintenance obligation began with a 2004 motion, and respondent moved in return for an award of attorney fees.  Following a discovery dispute regarding respondent's 2002 and 2003 income tax returns, the district court allowed respondent to submit the returns after the hearing.  The court then denied appellant's motion, holding that although respondent's net monthly income had increased from $1,405 to $1,655, the increase did not show that appellant's existing maintenance obligation was unreasonable or unfair.  The court also denied respondent's motion for fees.  The court subsequently denied appellant's request for amended findings, and on this occasion the court awarded respondent $500 for part of her fees incurred in the post-hearing proceedings.  Appellant disputes denial of his request for relief from maintenance, and respondent disputes the court's denial of her initial motion for fees.[1]

D E C I S I O N

1.

            The district court has discretion to decide whether to modify a maintenance award based upon a showing of substantially changed circumstances rendering the existing obligation unreasonable and unfair.  Minn. Stat. § 518.64, subd. 2 (2004); Claybaugh v. Claybaugh, 312 N.W.2d 447, 449 (Minn. 1981).  The court is to exercise its discretion "carefully" when asked to modify a stipulated maintenance award.  Id.  Maintenance-related findings of fact are not to be set aside on appeal unless clearly erroneous.  McCulloch v. McCulloch, 435 N.W.2d 564, 566 (Minn. App. 1989). 

            The court's finding of respondent's current net monthly income assumes that she works 24 hours per week.  Noting that she had worked more that 24 hours per week at times, appellant argues that that finding understates respondent's income.  But the district court found that respondent's medical condition left her "unable" to continue working the schedule she previously tried to maintain.  This finding is not clearly erroneous on this record and is consistent with the portion of the stipulated divorce judgment stating that respondent's medical condition made it "doubtful" she would be able to return to her career "on more than a part-time basis."  The record also permits, without clear error, the district court's refusal to find respondent's income to be the amount appellant claims she stated on a financial aid form for the parties' son. 

            Appellant argues that respondent's current $1,655 "net monthly income from employment" must be contrasted with earned income of $943 stated in the divorce judgment, $712 less than her current earnings. But in addition to income from employment, the divorce judgment found that respondent received workers' compensation benefits, making her then-total net monthly income $1,405.  Respondent no longer receives the compensations payments.

Appellant argues that the past compensation payments should be overlooked because the district court, when calculating respondent's current income, disregarded her receipt of income from what he alleges is an investment account.  Respondent argues that the account may be a retirement account.  Because evidence on the nature of the account was not presented to and considered by the district court, we do not address this aspect of appellant's argument.  Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988).  Moreover, even if the record permitted a finding that respondent's income increase is more than $250 (the difference between $1,405 and $1,655), prejudice to appellant is not evident; respondent's expenses, reviewed below, leave her with needs well in excess of her receipt of $1,655 earnings and $683 maintenance payments.

            Appellant notes that respondent claimed reasonable monthly expenses of $3,700 and argues that this amount is overstated.  But the district court merely found that respondent's reasonable monthly expenses were "in excess of $3,000," more than $400 higher than she experienced when the divorce judgment was entered, and appellant has not shown, on this record, that this figure is clearly erroneous.  The court's exercise of discretion is supported by the findings that respondent currently has resources much less than $3,000.  Appellant has failed to show error in the court's assessment of respondent's needs.

            Appellant also argues that the district court overstated his ability to pay maintenance by not considering the fact that emancipation of the parties' child precludes him from taking a dependency exemption for that child.  Because this question was not presented to and considered by the court, we decline to consider it.  Thiele, 425 N.W.2d at 582. 

            Finally, appellant challenges the district court's receipt and consideration of respondent's 2002 and 2003 tax returns.  Evidentiary rulings are not reversible absent an abuse of discretion causing prejudice to the objecting party.  Uselman v. Uselman, 464 N.W.2d 130, 138 (Minn. 1990).  Significantly, respondent's 2002 and 2003 tax returns are not dispositive regarding her 2004 need for maintenance because the district court had information on respondent's 2004 income and expenses.  Appellant has not shown that the use of tax-return evidence prejudiced him.  Similarly, appellant has not shown prejudice associated with his argument that the tax returns are inaccurate because they do not disclose respondent's maintenance income and improperly claimed the parties' son as a dependent; the district court did not omit maintenance from its calculations, and an improperly claimed dependency deduction would reduce respondent's tax obligation, understating her need for maintenance.

2.

            Under Minn. Stat. § 518.14, subd. 1 (2004), need-based attorney fees "shall" be awarded if the district court finds, among other things, that the party from whom fees are sought can pay them.  Also, the court has discretion to award "additional" conduct-based fees if a party "unreasonably contributes to the length or expense of the proceeding."  Id. 

            The district court's initial order found that appellant's current net monthly income was $3,058.27, and the court declined to reduce his $683 monthly maintenance obligation.  Although appellant did not submit evidence of his current monthly expenses, the 2000 divorce judgment states that he and the parties' child then had reasonable expenses of $2,780.  The child is now emancipated.  If, since the divorce, appellant's monthly expenses increased by no more than the expenses previously attributable to the child, an amount significantly less than what the court found respondent's expenses had increased since entry of the judgment, appellant lacked the ability to contribute to respondent's attorney fees.  Denial of respondent's first motion for need-based attorney fees is consistent with the ability-to-pay prong of Minn. Stat. § 518.14, subd. 1. 

            The district court initially refused to award conduct-based attorney fees, stating there was "insufficient evidence" that appellant acted in bad faith.  Whether a party acts in bad faith is a credibility determination on which we defer to the district court.  See Tonka Tours, Inc. v. Chadima, 372 N.W.2d 723, 728 (Minn. 1985) (stating whether party acts in good faith is, essentially, a credibility question); Sefkow v. Sefkow, 427 N.W.2d 203, 210 (Minn. 1988) (stating appellate courts defer to district court credibility determinations).  The record does not establish clear error of the district court, and we affirm the denial of respondent's initial request for conduct-based attorney fees.[2] 

            Finally, we reject appellant's argument that the court granted respondent's second motion for attorney fees without identifying the authority for the award.  It is evident that the fee award rested on the district court's observation, stated in a memorandum attached to its order, that appellant's motion to amend "lacks any merit and caused [respondent] to incur additional expense in relitigating [appellant's] claims."  We infer from this statement that the fees were awarded as conduct-based fees under Minn. Stat. § 518.14, subd. 1.  Cf. Geske v. Marcolina, 624 N.W.2d 813, 816 (Minn. App. 2001) (analyzing fee award for which no authority was given under Minn. Stat. § 518.14, subd. 1, because case was a family-law matter and family-law attorney fees awards are "[g]enerally" governed by that statute).  We also reject appellant's argument that the award lacked a basis in the record.  The crux of the award was the district court's determination that, because appellant's motion did not satisfy the criteria for a motion for amended findings set out in Lewis v. Lewis, 572 N.W.2d 313, 316 (Minn. App. 1997), review denied (Minn. Feb. 19, 1998), the motion was merely one for reconsideration.  Review of Lewis and the motion shows that the court did not mischaracterize appellant's motion.  We affirm the $500
award to respondent for the $1,500 in attorney fees she incurred in the post-hearing motion proceedings. 

            Affirmed.

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.

[1] We reject respondent's argument that, under Lewis v. Lewis, 572 N.W.2d 313, 315-16 (Minn. App. 1997), review denied (Minn. Feb. 17, 1998), this appeal is untimely because the order denying appellant's motion to amend states that his motion was essentially one for reconsideration, meaning it did not stay the time to appeal.  See State ex rel. Fort Snelling State Park Ass'n v. Minneapolis Park & Recreation Bd., 673 N.W.2d 169, 178 n.1 (Minn. App. 2003) (addressing post-Lewis changes in the law). 

[2] Appellant argues that respondent's challenge to the denial of her first attorney-fee motion is improper because she did not file a notice of review, but the record demonstrates a proper filing.